3 years ago cluster bombs were banned outright – so why are some of the same governments helping to draft an international law that says they are legal?

Under pressure from the United States, a number of governments that have banned cluster munitions are now helping to agree another international law under which these weapons continue to be legal. Being developed to protect cluster munition users, rather than vulnerable civilians, it is very likely that this new law would increase deaths and injuries from cluster munitions.

The Convention on Certain Conventional Weapon (CCW) is working to finalise this instrument at a Review Conference at the end of 2011, in a process being driven by countries that wish to carry on using cluster munitions but feel the need for some legal cover in the face of the growing stigmatisation of the weapon, which was comprehensively banned by over 100 countries three years ago. Bizarrely, a number of countries that have banned these weapons outright are helping in that effort.

Their arguments for helping are that the new law will be followed by big military players (e.g. USA, Israel, Russia) and that although not a comprehensive ban it will be better than nothing. These arguments can be addressed in their own terms – but it is worth recognising that this is as much about governments and their officials wanting to help their friends as it is about the actual policies and political priorities of governments. For some diplomats – who because of consensus politics rarely achieve anything at all on disarmament, let alone anything of substance – the prospects of playing deal-maker appear to be just too tempting. The result is a proposed law free of humanitarian principle, legally incoherent and fundamentally working against the best interests of civilian protection.

In its own terms the new draft law is an incoherent and confusing jumble of loopholes and transition periods. It is full of standards that have no way of being meaningfully tested (i.e. an outright exemption from classification as a cluster munition for submunitions with a failure rate of less than 1% ) and allows cluster munitions with various features that have been shown not to provide adequate civilian protection in practice (e.g. self-destruct mechanisms). Again, proponents of the draft law (who have generally not spent any time dealing with the post-conflict problems these weapons cause) claim that these measures are better than nothing. But this fails to recognise that these measures are not only not good enough but actually risk increasing the number of people killed and injured. The civilians and deminers that had to face contamination from M85 cluster munitions in Lebanon in 2006 can testify that such measures are insufficient. Yet by agreeing a law that endorses these measures, at a time when cluster munitions as a whole were being rejected, the likelihood of these weapons being used in the future increases.

Although their officials are promoting this new law, the governments that have endorsed the 2008 Convention on Cluster Munitions would not actually sign onto this agreement were it to be achieved. Although some have no doubt convinced themselves that this effort is actually protecting civilians, the role that the officials involved in these negotiations are in fact playing, whether mandated by their capitals or not, to help friends in other delegations (or simply to feel like active participants in something) is to facilitate an agreement that can be backed by the USA. Perversely, the proposal now on the table is actually weaker than the domestically policy the USA already had in place – so this agreement would provide no additional constraint on cluster munition use to the country that has used these weapons more than any other.

Sadly, a number of the governments that have banned cluster bombs have been bending over backwards to draft national laws that read as if they are designed to allow them to help the USA to use cluster munitions where they work as military partners. This new international legal effort, were it agreed, is to serve a similar function, as illustrated in the following sketch:

Journalist: Prime Minister, we have banned cluster munitions outright – don’t you therefore consider it unacceptable that our military partner the USA is planning to use these weapons?

Prime Minister: Whilst we have banned these weapons outright, the USA has endorsed Protocol 6 of the CCW – so they are acting entirely within their legal obligations. And of course, both ourselves and the USA are committed to doing our utmost to avoid civilian casualties…..

The goal is a law that protects the users of cluster munitions from criticism, rather than protecting vulnerable civilians from being killed and maimed. To achieve this, certain states seem prepared to adopt the first instrument of humanitarian law to openly and deliberately set a lower standard of civilian protection than law already in place. Governments that have banned cluster bombs – and in particular the United Kingdom given its relationship with the UK – should reject these negotiations and fulfill their legal obligations under the Convention to do their utmost to bring other countries on board.